R v Williams [2014] ACTCA 30

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2014] ACTCA 30

1. The appeal be allowed and the sentences be set aside.
2. The respondent be re-sentenced to a total sentence of nine years and six months imprisonment, backdated to 7 September 2013 and made up of:
   • (a) three years' imprisonment for assault occasioning actual bodily harm; and
   • (b) eight years' imprisonment for sexual intercourse with a child under ten years, to start eighteen months after the assault sentence.
3. A non-parole period of seven years and six months be set, backdated to 7 September 2013 and expiring on 6 March 2021.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - interference with sentence imposed by court below requires identification of specific sentencing error or error inferred from manifest inadequacy or excess of sentence - weight given to particular sentencing considerations is not a specific sentencing error, or a particular of manifest inadequacy or excess - particulars of manifest inadequacy or excess may include specified sentencing considerations, whether or not said to have been inappropriately weighted by sentencing judge - giving plea of guilty discount said to be excessive is not a specific sentencing error - circumstances of plea of guilty may be relevant in determining manifest inadequacy or excess - scope and use of "comparable sentences"

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - sentence for assault occasioning actual bodily harm and sexual intercourse with child under ten years - offender with poor criminal record including multiple sexual offences against children - pattern of re-offending shortly after release - importance of community protection - total sentence of seven years and six months manifestly inadequate - offender re-sentenced

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 36

Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323

Bugmy v The Queen [2013] HCA 37; (2013) 302 ALR 192;

Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

House v The King [1936] HCA 40; (1936) 55 CLR 499

R v Ang [2014] ACTCA 1

R v Ellis (1986) 6 NSWLR 603

R v GE [2014] ACTSC 181

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Court File Number(s): SCC 158 of 2013; SCC 206 of 2013

1. This appeal concerns a sentence imposed on the respondent for two unrelated offences, being an assault occasioning actual bodily harm committed on 28 November 2012 and sexual intercourse with a person under ten years committed on 5 September 2013. The maximum penalties for those offences were five years and seventeen years' imprisonment respectively.

2. The respondent was sentenced to two years and three months' imprisonment for the assault, reduced from three years for his plea of guilty (a 25% discount) and to six years imprisonment reduced from eight years for the sexual intercourse (also a 25% discount). The second sentence was accumulated by eighteen months (that is, the second sentence began eighteen months after the first sentence) so as to give a total sentence of seven years and six months, and a non-parole period of four years and six months (60% of the total sentence) was set.

3. This is a Crown appeal against sentence. The principles governing such appeals are well-established and have been conveniently summarised by Refshauge J in R v TW (2011) 6 ACTLR 18 at [4]-[6], pointing out that they are considered anomalous in the criminal justice system and should only be brought in rare and exceptional circumstances. As with other appeals against sentence, the appeal is not a new hearing and the Court may not substitute its opinion for that of the sentencing judge merely because it disagrees with the sentence but must first find an error of the relevant kind as discussed below.

4. The Crown has appealed against the sentence on the ground that it was manifestly inadequate. Six "particulars" are given; five of them are that the two head sentences and the total head sentence was manifestly inadequate, and the non-parole period was manifestly inadequate as to its length and as a proportion of the total head sentence. The other "particular" is that her Honour "gave too much weight to the plea of guilty in respect of each offence".

5. The Crown further says that the manifest inadequacy of the assault offence arises only from giving too much weight to the plea of guilty and thereby calculating a manifestly inadequate sentence. The Crown also does not take issue with the degree of accumulation, noting that a higher sentence for the sexual intercourse offence would itself result in a higher total sentence.

6. We note that on the basis of the unchallenged eighteen months accumulation, an increased sentence for the assault would not make any difference in the overall sentence.

7. There is no complaint made about her Honour's account of the relevant offences, about the evidence she has taken into account in reaching her conclusions, or about the sentencing purposes considered. Accordingly, it is appropriate to repeat the relevant parts of her sentencing remarks to provide the background and context of the sentences imposed and of this appeal:

1. The statement of facts is contained in Exhibit 1. In summary, the offence of assault occasioning actual bodily harm occurred on the evening of 28 November 2012. At that time, the offender resided at Ainslie Village in Campbell, as did the victim. At about 7.05 pm the offender knocked on the victim's door. The victim opened the door. The offender walked away, talking about black people taking his country. The victim is of African origin. After the offender walked away, the victim went to retrieve an item from his car. The offender approached him again, swearing at him and accusing him of taking his country. The victim tried to walk away but was grabbed by the offender and pulled backwards. The offender then punched the victim in the mouth. The victim fell to the ground and tried to protect his head. The offender punched him several times. A witness ran outside and observed the incident. She called to the offender to stop and the offender then walked away from the victim. The police were called.
2. The victim sustained a cut to his upper lip about two centimetres wide and one centimetre deep. Photographs show a very nasty laceration. The victim was conveyed to the Canberra Hospital where he undertook a surgical procedure under general anaesthetic to repair his lip. The victim remained in hospital for two or three days.
3. Police apprehended the offender soon after the incident. He admitted to hitting the victim, maintaining that he was defending himself. He was belligerent and aggressive towards the police, and it was obvious that he was highly intoxicated. As the police tried to arrest the offender, he resisted and struggled. Ultimately, three officers were required to secure the offender in handcuffs. Once secured, the offender continued to shout and demand to be released. Upon arrival at the ACT Watch House, he was deemed to be too intoxicated to participate in a police interview. Later, he was bailed. One of the conditions of bail was that he was not to be intoxicated in a public place.
4. The more serious offence, sexual intercourse with a young person, occurred when the offender was on bail in relation to the first matter. It involved a breach of the bail condition that he not be intoxicated in a public place.
5. At about 11.45 am on 5 September 2013 the three-year-old female victim was present with her mother at the Belconnen Library. Shortly before 1.00 pm the offender attended the library for the purpose of using the toilet. At that stage he was en route to make an annual report to police, a requirement because he was a registered child sex offender. Inside the library, the offender decided to look at some books. The victim approached the offender in a friendly way, saying "hello." The offender encouraged her to sit with him. She sat on the ground with her back against his chest. He then pulled down his pants and underwear a short distance, pulled down her pants and underwear and used his hands to reach inside and insert a finger into her vagina moving it around. He then removed his finger, before reinserting it. Simultaneously, he thrust his groin against the victim's buttocks. The victim said that she needed to go. By that stage the victim's mother, who had been using a computer at a terminal, realised that her daughter had wandered off. She checked the library and saw the offender crouched down with his arms around her daughter. The offender immediately moved away from the victim, pulling up his pants. The victim's mother observed that her daughter's pants and undies had been pulled down. The offender left the library. The victim was able to indicate the nature of the offender's violation, both verbally and by action. Fortunately, a hospital examination revealed no physical abnormality in the victim.

The current offence in conjunction with Mr Williams [sic] past history of similar offences are cause for great concern. Elements of the current offences are consistent with past circumstances and choices, suggesting the existence of a pattern of behaviour likely to result in such offending. Mr Williams expressed a lack of control over his behaviour and despite retaining a limited amount of knowledge from past treatment; he appeared unable to employ strategies to prevent his behaviour.

Whilst Mr Williams has expressed some remorse, it is largely centred on the shame he feels at being caught out. His response at this stage is motivated by the need to avoid acceptance of the behaviour in which he has engaged.

Despite the apparent failure of past treatment, further intensive treatment is warranted in order to address the issues of Mr Williams' poor self-management. Treatment by way of an adult sex offender treatment program, an appropriate drug and alcohol intervention to match his needs and psychological counselling to build his capacity to influence his behaviour, are required. In the absence of such treatment, Mr Williams must be considered a significant risk of further offending in this manner.

Another matter to which the pre-sentence report refers is sentiments of anger experienced by the offender, which may require treatment. I infer that those emotions relate to the offender's disadvantaged upbringing, particularly the abuse that he suffered as a child.

21. The offender presents as an Indigenous person who has suffered an extremely deprived upbringing as a result of which he lacks the psychological resources to conduct himself in the manner in which a normal adult would conduct himself. On the other hand, he is someone who has demonstrated that he is a danger to the community. He is a danger to the most vulnerable members of the community; young people under the age of 10, and children as young as the three-year-old victim in these proceedings.

1. In sentencing the offender, the Court is required to consider the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) ("Sentencing Act"). A relevant sentencing purpose is that the offender is adequately punished in a way that is just and appropriate given the severity of the crimes. In relation to the considerations of specific and general deterrence, I agree with the Crown submission that, in the past, specific deterrence has been of little use. When one considers the circumstances of the sexual offence before the Court, this is plainly demonstrated. General deterrence is, in this case, most significant in relation to the assault occasioning actual bodily harm because the assault was an unprovoked assault. It resulted in significant injury and it involved a racist component. A strong message must be sent that assaults based on race are to be strongly condemned and strictly punished by the courts. A very important consideration in relation to the sexual intercourse offence is protection of the community from the offender. Protection has two aspects. One is ensuring that the offender is kept away from the community and remains in custody for an appropriate length of time. The other is trying to provide an opportunity for the offender to rehabilitate, although history suggests that those prospects are not good. Accountability is an important sentencing objective, as is denunciation. Both those sentencing objectives relate to both the offences. In respect of both offences, it is important to recognise the serious harm done to the victims and to the community.
2. The Court is required to consider (insofar as the matters are relevant and known to the Court) the matters set out in s 33 of the Sentencing Act, and I have had regard to those matters.

24. The offences are quite separate offences and there needs to be significant accumulation of the sentences to reflect the separate nature and timing of the offences. There will be partial accumulation.

8. There is one significant aspect of this matter that is not apparent from the sentencing remarks. The respondent was initially charged, presumably on the basis of the child's description of the incident and the mother's observations, with an act of indecency on the child. He pleaded guilty to that offence in the Magistrates Court and was committed to the Supreme Court for sentencing. Subsequently he agreed to a police interview at which he described having inserted his finger into the child's vagina twice. As a result of this admission, the Crown filed an ex officio indictment containing a charge of sexual intercourse with a child to which the respondent pleaded guilty shortly afterwards. That is, but for his own admission, the respondent would have been sentenced for an act of indecency rather than for the more serious charge of sexual intercourse.

9. The Crown cited standard authorities in relation to the consideration of manifest inadequacy, as follows:

1. This is a classic case of manifest inadequacy. It is not asserted by the Crown that the reasons for sentence contains specific error demonstrating that her Honour had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. Rather the Crown relies upon last category of cases identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. Manifest inadequacy is to be inferred from the result. As Gleeson CJ and Hayne J in Dinsdale v R [2000] HCA 54 at [6] noted:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.10. In arguing the sentence on its face, was "unreasonable or plainly unjust", the Crown is entitled to point to matters which, taken with other circumstances, might be "indicative of" (Gageler J in Bugmy v The Queen [2013] HCA 37 at [53]), or provide "some explanation for" (Gummow, Hayne, Crennan, Kiefel and Bell JJ in Carroll v The Queen [2009] HCA 13) manifest inadequacy.

11. For although manifest inadequacy is to be inferred, this does not mean it is "fundamentally intuitive" (cf Hili v The Queen [2010] HCA 45 at [60]).

10. The Crown then took issue with the comment made by the ACT Court of Appeal in R v Ang [2014] ACTCA 17 that "in considering a claim of manifest inadequacy or excess, particular aspects of the sentencing judge's consideration are not in issue", and continued:

Although the ultimate conclusion of manifest inadequacy depends on a consideration of "the facts and circumstances that were available for consideration in the sentencing process" ... it is quite appropriate for the Crown to point to errors and failures of the sentencing judge which, while they do not amount to specific errors of the kind described in House v The King, nevertheless are indicative of error in the second category.

11. In support of this submission, the Crown referred to Carroll v The Queen [2009] HCA 13; 254 ALR 379, and specifically relied on the comments of the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 302 ALR 192; the Crown submitted that in the latter case:

Gaegler J [sic] accepted that a ground of appeal which asserted that the weight afforded by the judge to the offender's subjective case impermissibly ameliorated the appropriate sentence was a circumstance which might be indicative of manifest inadequacy (at [53]). Or as the plurality more concisely described it, it was a particular of the ground that the sentence was manifestly inadequate - see Bugmy at [22].

12. The paragraphs relied on by the Crown, and other comments, require careful consideration. At [22], the plurality did say:

The Director's additional grounds were particulars of the ground that the sentence was manifestly inadequate.

Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal's assessment of the appropriate sentence and Judge Lerve's assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the Court was satisfied that Judge Lerve's discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. [citations omitted]

14. The plurality in fact made it clear that within a range of sentences for the offence, the weight to be given to evidence and to the various purposes of sentencing is a matter for the sentencing judge, and emphasised that the Court of Appeal was not empowered to impose a new sentence because it would have weighted different considerations differently. It was only empowered to do so if the Court of Appeal was satisfied that the discretion had miscarried because in the result, the sentencing judge imposed a sentence that was below the just range of sentences. The statements by the plurality in our view specifically disclaim that the other grounds of appeal were "particulars" of manifest inadequacy to the extent that they identified errors made by the sentencing judge, as distinct from identifying matters that were relevant in the sentencing decision and that pointed to the sentence actually imposed being below the just range of sentences.

The Director's three "additional grounds of appeal" to the Court of Criminal Appeal were not clearly framed to invoke either category of appellate intervention. The first and second were framed in terms of a failure "properly" to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of "weight". It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.

16. His Honour noted that the appeal ground complaining about weight pointed at most to a circumstance which might be indicative of error in the second category referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 (House). His Honour did not suggest that the appeal ground concerned pointed to an error which might have caused the manifest inadequacy said to permit an inference of error.

17. The point made by the Court of Appeal in R v Ang was that, while particular aspects of the circumstances of the offence or the offender, or other applicable sentencing considerations, might be relevant to establish manifest inadequacy or manifest excess, they were not relevant as indications of the nature of the inferred error made by the sentencing judge, but as circumstances by reason of which the ultimate sentence might have been expected to be significantly higher or lower (see R v Ang at [22] to [25]).

18. In any event, it is not possible to assess, from a sentence which has been set following the instinctive synthesis that is required, what weight has been given to particular elements so as to determine that too little or too much weight has been given to any particular factor, unless the sentencing judge specifically says what weight has been given to it. This was not the case here, where the Crown did not identify any such remarks by the Chief Justice. As is made clear in House, any such errors can only be inferred, without being identified, by showing that the result is manifestly inadequate (or excessive).

19. Indeed, once it is conceded, as it was by the Crown at the hearing, that an error as to weight is not an error of the first kind described in House, which may permit re-sentencing even in the absence of manifest inadequacy or excess, then the sentencing judge's alleged errors or considerations become irrelevant; what remains relevant is the matters that he or she was required to consider and the level of sentence that those matters could reasonably have been expected to produce.

20. In this case, the Crown has understated its argument for a finding of manifest inadequacy by referring simply to the plea of guilty discounts as the only particular of the asserted inadequacy that has any content (the other particulars are only an analysis of the various points at which inadequacy might be identified).

21. This is curious, given that a 25% discount for early pleas of guilty with very clear utilitarian value would in general be hard to identify as any kind of error, let alone one which might transform an otherwise adequate sentence into an inadequate one. It is even more curious given the significant fact of the respondent's admission to the offence of sexual intercourse with the child, without which he could not have been charged with that offence. In accordance with the principles considered in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 (see for instance Gummow J at [95] and [96]) and R v Ellis (1986) 6 NSWLR 603 (heavily relied on in submissions on behalf of the respondent), and also reflected in s 36 of the Crimes (Sentencing) Act 2005 (ACT), the respondent could have expected if anything a higher rather than a lower plea of guilty discount.

22. The Crown relies on comments by the NSW Court of Criminal Appeal in R v Thomson & Houlton [2000] 49 NSW LR 383 at [157] and [158] that there may be circumstances where the offending is so serious that no discount, or little discount, should be given for a plea of guilty. However, it is apparent that, for instance, a 12.5% plea of guilty discount would have turned the two sentences into roughly thirty-two months and seven years respectively which, accumulated by eighteen months as mentioned at [5] above, would have given a total sentence of eight and a half years - an extra year, which added onto a first instance sentence of seven and a half years would in our view be at best on the edge of "tinkering".

23. There are, however, a variety of aspects of this sentencing that in our view could have been pointed to as suggesting manifest inadequacy. They include:

(a) that the offender was on bail for the assault offence at the time of the sexual intercourse offence, and was on his way to report to police in performance of his obligations under his registration as a Child Sex Offender;

(b) the gravity of the sexual intercourse offence, including by reference to the age of the child, the nature of the sexual intercourse, which involved actual penetration, and the shamelessness of the offending behaviour;

(c) the offender's prior record for offences of a similar kind against other young children and the fact that he appeared to have re-offended on each occasion shortly after being released from the previous prison term;

(d) the fact of re-offending despite both having served prison time for earlier similar offences and having been provided with treatment for his sexual urges;

(e) the offender's bleak prospects of rehabilitation; and

(f) the importance of the sentencing purpose of community protection, having regard to the repetition of the offending behaviour.

24. Those matters were mentioned by the Crown as matters that indicated how serious the offending was, but not explicitly as matters that might be relevant in identifying manifest inadequacy.

25. As to the actual bodily harm offence, the Crown could have noted:

(a) the sustained nature of the attack;

(b) the severity of the injuries inflicted; and

(c) the racist element of the offender's remarks to the victim.

26. As Gleeson CJ and Hayne J said in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325, "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion" and it is from a correct and complete description of the relevant facts and circumstances that the conclusion can be drawn, having regard to the relevant sentencing principles and sentencing practice, usually represented by comparable cases.

27. Counsel for the Crown explained that no comparable sentences had been drawn to the Court's attention because it had not been possible to identify any other case involving the same combination of objective and subjective circumstances as the current case.

28. This approach seems to reflect an unduly narrow view of the help that can be obtained by a consideration of sentences in other cases. A case may be usefully "comparable" without being identical to the case under consideration. If the objective seriousness of the two offences is similar, the relevance of the sentence imposed in the "comparable" case, in terms of identifying a range, can be considered taking account of the differences between the subjective circumstances of the two offenders. If the objective seriousness of the offences is significantly different, this also, to the extent that subjective matters affecting the two offenders are similar, may help in working out the appropriate range in the current case.

29. It is not the role of this Court to conduct independent research to identify "comparable" sentences. As the plurality pointed out in Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323; [[2014] HCA 2] at 331; [38], the parties' submissions should contain "what facts should be found, the relevant sentencing principles and comparable sentences", and the sentencing judge will then "have all the information which is necessary to decide what sentence should be passed".

30. However, one recent sentence for the offence of sexual intercourse with a child under the age of 10 years may be worth mentioning. In June 2014 (well after the sentencing under appeal), GE was sentenced for two offences of sexual intercourse, constituted by cunnilingus (not involving penetration), with a five-year-old family member (R v GE [2014] ACTSC 181). GE was a man in his sixties who had no criminal record and was otherwise of positive good character. There was no reason to expect that he would re-offend, and so none of specific deterrence, poor prospects of rehabilitation and community protection was seen as a significant sentencing consideration. GE, for whom no plea of guilty discount was available, was sentenced to seven and a half years imprisonment on each count, accumulated so as to give a total sentence of eight years with a non-parole period of four years and six months.

31. Clearly, given the many differences between the subjective circumstances of the respondent and GE, and in particular the relative risks posed by each offender to the community at large, it cannot be said that a sentence the same as that imposed on GE would be appropriate in this case - but, as noted earlier, this is not the only way in which a "comparable" sentence can be useful. The sentence imposed in a case that seemed to justify a more lenient sentence could be seen to indicate that in this case, the term of eight years to which the plea of guilty discount was applied was very low.

32. The factors we have identified in relation to the respondent's offending, even set against the respondent's undeniably dysfunctional background (including in particular his own experience of childhood sexual abuse), and the respondent's lack of violent offences in his criminal history, have led us to conclude that the sentences under appeal were manifestly inadequate, and not just as a result of the plea of guilty deductions but before those deductions were applied.

33. Accordingly, the appeal is allowed, the original sentences are set aside and the respondent is re-sentenced as follows:

(a) for the assault - to three years' imprisonment reduced from four years for his plea of guilty; and

(b) for the sexual intercourse offence - to eight years' imprisonment reduced from ten years (the slightly lower plea of guilty discount reflecting the need to protect the community from further sexual offending against children).

34. The sexual intercourse sentence will start eighteen months after the assault sentence, giving a total of nine and a half years imprisonment, backdated to 7 September 2013 to take account of time in custody and therefore expiring on 6 March 2023.

35. We set a non-parole period of seven and a half years, also backdated to 7 September 2013 and therefore expiring on 6 March 2021. This non-parole period is 79% of the head sentence. This is a relatively high non-parole period in the ACT, but is in our view justified by the vital need for community protection in this case. Of course, parole is not automatically granted at the end of the non-parole period but depends on a determination by the relevant authorities of whether it is by then appropriate to release the offender into the community.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.